Judge vacates OSHA traffic injury citations against employer

An administrative law judge of the U.S. Occupational Safety and Health Review Commission vacated safety citations, but upheld a $2,000 penalty against an employer for failing to provide notification of an accident after one of its employees was seriously injured.

In September 2015, an employee of Boise, Idaho-based JH Traffic Control Co. L.L.C. was assigned to place traffic control barrels on a busy road in advance of a construction project in Boise, Idaho. The unnamed employee was placing barrels to merge two lanes of traffic into one lane when he was struck by an oncoming vehicle and seriously injured. The employee was in a coma for some time and sustained potentially permanent brain injuries, according to records in Secretary of Labor vs. JH Traffic Control Co. L.L.C.

The U.S. Occupational Safety and Health Administration learned of the accident via a newspaper article two days later, commission records show. OSHA’s revised injury and illness reporting rule, which went into effect in January 2015, requires employers to inform the agency of certain severe injuries and hospitalizations within 24 hours of management learning of the incidents.

OSHA investigated the accident and issued three serious and one other-than-serious citations with proposed penalties of $7,600. The company contested the citations and a trial in January resulted in two citations being withdrawn and a modified total proposed penalty of $4,800, records show.

The remaining citations under review by the commission centered on the company’s failure to notify OSHA of the accident, that employees were crossing live lanes of traffic to retrieve traffic barrels, and that employees were setting up traffic barrels against the flow of traffic rather than with it. It is a recognized safety practice in the traffic control industry to place traffic control devices in the direction of the flow of traffic so there are one or more traffic control devices between oncoming traffic and the worker, according to commission documents.

The review commission determined that it was indisputable that employees were exposed to the hazard of being struck by oncoming cars in a live traffic lane as they were retrieving barrels from the sidewalk. However, the commission found the employer had no way of knowing employees were briefly crossing live traffic lanes in their work and vacated the citation.

Testimony from responding police officers was inconclusive on which direction the employee was working to set up barrels. The court noted officers were focused on the actions of the driver, who was allegedly watching a passenger glue on body art at the time of the collision. In addition, the impact had caused at least one barrel to be moved from its position at the time of impact.

Due to conflicting testimony, the commission relied heavily on the statements of an employee who was working with the injured employee at the time of the accident. That employee testified that the injured employee was placing barrels with the flow of traffic and was readjusting a barrel he had previously set at the time of the accident. The commission also vacated this citation.

The employer accepted the violation related to not reporting the accident within 24 hours, arguing only that the proposed penalty of $2,000 was excessive. The original proposed fine was $5,000, which was discounted 60% due to the employer’s small size, case records show.

“Because respondent did not have an inspection history, complainant determined that it was not eligible for an additional history-based penalty reduction,” the ruling said. “The court agrees with complainant’s characterizations and also notes that respondent’s failure to notify OSHA of this accident within the required timeframe hindered its ability to conduct a thorough and complete investigation of this incident.”

The judge ruled that a final penalty of $2,000 was appropriate in a decision adopted as a final order of the commission on July 12.

Joie Henington, owner of JH Construction Traffic Control, said she accepted the 24-hour reporting violation because she was unaware of the new OSHA requirement that went into effect the same year the accident occurred and because she was at the hospital with the injured employee during the time immediately following the accident.

“My only concern at that time was for the life of my employee,” said Ms. Henington, who noted that distracted driving was the primary cause of the accident. “Laws need to be stricter and fines and/or jail time needs to be higher for people who drive inattentively and endanger the lives of construction workers. Our work record of 22 years in business without any accidents until this one, attributed to no fault of our own, speaks for itself.”